Disney and Fox Near Showdown With Aereo at Top Court

Jan. 9 (Bloomberg) -- Major broadcasters are heading for a
showdown in their bid to block a Barry Diller-backed company
from upending the industry’s economics by offering subscribers
live television over the Internet.

The U.S. Supreme Court will say as soon as tomorrow whether
it will consider the claim by companies including Walt Disney
Co.’s ABC and 21st Century Fox Inc. that Aereo Inc.’s business
is built on copyright violations, obtaining broadcast signals
for free and distributing them for a profit.

Both sides in the dispute are seeking a high court hearing,
increasing the chances the justices will step in. If so, the
case will determine the fate of Aereo, a startup that threatens
the billions of dollars in retransmission fees broadcasters get
from pay-TV systems that provide signals to subscribers.

“It’s nothing short of a watershed moment,” said David
Bank, a media analyst with RBC Capital Markets. “If the Supreme
Court agrees to hear it, we’re going to finally resolve the
issue.”

A federal appeals court in New York ruled that Aereo, which
provides broadcast signals to subscribers after capturing them
with thousands of small antennas, isn’t violating broadcasters’
copyrights. Comcast Corp.’s NBCUniversal and CBS Corp. are
joining Disney and Fox in urging reversal.

A decision to take up the case this month would mean a
Supreme Court ruling by early July. The justices could also ask
the Obama administration for input, a step that would delay a
resolution.

Retransmission Fees

Retransmission fees have become increasingly important for
broadcast networks, supplementing advertising revenue.

Broadcasters are expected to reap more than $4.29 billion
in fees paid by satellite and cable companies this year, a 30
percent gain from last year, according to research firm SNL
Kagan. That revenue is projected to reach $7.15 billion by 2018.

Fox and CBS have said they may abandon their broadcast
signals and become cable networks if Aereo continues unabated.

“We need to be able to be fairly compensated for our
content,” 21st Century Fox President and Chief Operating
Officer Chase Carey said at an industry conference last year.
“We can’t sit idly by and let an entity steal our signal. We
will move to a subscription model if that’s our only recourse.”

Conversion to a cable network would mean that broadcast
signals would no longer be freely available over the airwaves.

Cable Switch

Should broadcasters make the switch, it would affect about
12 percent of households, according to estimates based on data
from SNL Kagan and Nielsen. About 100 million of 114 million
U.S. homes with televisions subscribe to pay-TV services.

Diller, the billionaire investor who helped create the Fox
network, says New York-based Aereo may eventually get as much as
35 percent of U.S. households to subscribe if it overcomes legal
challenges. The service charges customers $8 a month.

DirecTV, Time Warner Cable Inc. and Charter Communications
Inc. are considering using the same approach, capturing free
broadcast-TV signals to avoid paying retransmission fees,
according to people with knowledge of the companies’ plans.

The cable companies could use Aereo’s approach in an effort
to bypass or reduce the fees they now pay, the people said.

The court fight centers on a provision in the federal
copyright law that gives owners the exclusive right to perform
their works “publicly.” The appeals court said Aereo’s service
was legal because the separate antennas let each customer create
a distinct copy of a broadcast program for viewing, so no public
transmission was taking place.

‘Technical Detail’

The broadcasters argued in their appeal that Aereo is
trying to use a “technical detail” to circumvent well-established legal rights.

“There is no dispute that Aereo has developed a business
model around the massive, for-profit exploitation of the
copyrighted works of others,” the broadcasters argued.

Aereo is taking the unusual step of encouraging Supreme
Court review of a ruling in the company’s favor, saying it wants
to resolve legal doubt. That stems in part from rulings by two
federal trial judges declaring another company’s similar system
to be a copyright violation.

Litigation has “created uncertainty that undermines
Aereo’s efforts to expand its footprint and further develop its
business,” the company told the court.

Chet Kanojia, chief executive officer of Aereo, told
Bloomberg Television yesterday that “it will become clear what
the road map looks like on the legal front over the next few
months” if the Supreme Court takes up the case.

NFL Backing

Lower court disagreement often prompts the high court to
consider a case, though the justices tend to wait until the same
issue has been decided differently at the appeals court level.

The National Football League and Major League Baseball,
whose games appear on broadcast TV, are backing the media
companies. The broadcasters also have support at the high court
from companies that produce television programs, including Time
Warner Inc. and Viacom Inc.

Cablevision Systems Corp. is taking a middle ground in the
debate, saying that while Aereo’s service violates the copyright
laws, the broadcasters’ arguments go too far and threaten
legitimate services.

The local TV broadcast industry is run separately from the
national networks and would face a different challenge if Aereo
is found to be legal. Local broadcasters act as affiliates of
the national networks and negotiate separate deals with pay-TV
operators.

Consolidating Business

Local broadcasters have consolidated in the last few years,
a move partly spurred by the growth in retransmission revenue as
well as the value of their broadcasting bandwidth, also known as
spectrum, parts of which could be sold.

The situation led to more than $10 billion in acquisitions
last year, according to data compiled by Bloomberg. Aereo’s
legality could threaten the value of those deals, according to
Bank.